|Change of Domicile|
|Written by Robert Stelmock|
|Monday, 16 August 2010 00:00|
Most divorce judgments, many support orders and orders of filliation have a paragraph in them that tells parents they must seek the court's permission before they can move out of state with the minor child or children of the Parties or move away more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued. This applies to a parent who has primary physical custody, and would apply to both parents if they have shared physical custody.
According to Michigan Court Rule (M.C.R. 30211 (C)(1)), "The order or judgment awarding custody of a child must provide that the domicile or residence of the child may not be moved from Michigan without the approval of the judge who awarded custody or the judge's successor". Court approval can be obtained in two ways; by stipulation and agreement between the parties or absent an agreement between the parties by filing a motion and requesting a hearing.
A. An order or judgment concerning custody of a minor child must contain a provision that the child shall not be removed from the State of Michigan without the approval of the judge who awarded custody or the judge’s successor. MCR 3.211(C).
B. An order to permit a removal from the State of Michigan is required before a move can occur. The order may be entered either by consent or by the court after hearing.
C. Parties who are in pro per who agree to a removal from the state may obtain a form consent order from the Friend of the Court office.
A. MCL 722.31 (effective January 9, 2001)Sec. 11
1. A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
2. A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4) permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to one of the child’s parents.
a. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
A. Dick v Dick, 147 Mich App 513, (1985) summarizes the standards for deciding removal petitions, employing the test from the New Jersey case of D'Onofrio v D'Onofrio.
B. Under D'Onofrio v D'Onofrio, 144 NJ Super 200, 206-207, 365 A2d 27 (1976), aff'd, 144 NJ Super 352, 365 A2d 716 (1976) the trial court must consider:
1. Prospective advantages of the move for improvement of general quality of life for custodial parent and child(ren).
2. Integrity of the motives of the custodial parent in seeking to remove in order to determine whether the move is inspired primarily by a desire to frustrate the parental relationship of the non-custodial parent.
3. Is the custodial parent likely to comply with this state's parenting provisions once s/he is no longer in the state?
4. Integrity of the non-custodial parent in opposing the move. For example, consider extent to which opposition is motivated by desire to achieve financial advantage.
5. Will there be a realistic opportunity for parenting time in lieu of the weekly pattern which can foster an adequate basis for preserving and fostering the parental relationship between the non-custodial parent and child(ren) if removal is allowed?
If you are considering a change of domicile please call us, 734 927-9782, today so we can discuss your matter.
The information you obtain at this site is not, nor is it intended to be, legal advice and does not establish an attorney-client relationship. Please consult the Law Offices of Stelmock & Associates, PLLC, 734 927-9782 for individual advice regarding your own situation.
|Last Updated on Monday, 16 August 2010 22:20|